### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00124- CV

William B. G am m on, App ellant

v. Henry I. Hank

Hodes and Diagnostic Experts of Austin , Inc., Appellees

F ROM CO UNTY COURT AT LAW NO . 1 O F TRAVIS CO UNTY, NO. C-1 -CV- 10- 0071 88, H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant W illiam B. Gammon appea ls from a trial court judgment t hat Gammon ,

an attorney , take nothing on his claim for unpaid attorney ’s fee s ag ainst his former clients, appellee s Henr y I

. “Ha nk” Hodes and Diag nostic Ex p erts of Austin, I nc. (DEA) , and that Gammon forf eit additional attorney ’s fe es in the amount of $27,379.19. We will aff irm the trial cour

t’s judgme nt.

BACK GR OUND This is an appea l from a suit to enfor ce an “attorne y fee con t ra ct an d assig nment of i ntere st” (the “fee ag ree ment”) between Gammon and Hodes, as an owner and office r of DEA. Prior to this fee ag ree ment, Gammon h ad re p re s ented DEA in a lawsuit ag ainst Denise Hodes, Hodes’s former wife. Acc ording to Gammon, he had provided leg al service s to DEA that resulted in a judgme nt in DEA’s favor ag ainst Denise Hodes. The judgme nt included a constructive trust on Denise Hodes’s homestead in the amount of $103,000, and DEA eventu al l y s oug ht to satisfy theconstructive- trust portion of t he judgment t hroug h fore closure. On M ay 4, 2009, the ni g ht befor e

the schedule d fore closure sale, Gammon and Hode s executed the fe e ag ree ment that is the subject of thi s dispute. Under the fee ag ree ment, Gammon would rec over a 50% conting ent fee on any future rec overy made by DEA. The next day , DEA fore closed on its constructive trust and purcha sed Hodes’s former home, valued at more than $400,000, for $10,000 at the sheriff ’s sale. The proper

ty was subseque ntly

transfe rre d to Hodes.
Gammon later asser

ted that he held a 50% interest in the home as a result of the fee
ag ree ment. When DEA and Hodes ref used to rec og nize Gammon’s interest in the home, Gammon filed sui t ag ainst Hodes and DEA alleg ing brea ch of contra ct and, al t er n at ively , a right t o rec over the value of hi s leg al s ervic es i n quantum meruit. I n response , Hodes a nd DEA a sserted a varie ty of defenses, including unconscionability and accor d and satisfaction, as well as co u n terc laims for malprac tice and br eac h of fiducia ry duty

. Following a trial, the jury returne d a verdic t finding , among other things, that on May 4, 2009, Gammon had enter ed the fee ag ree ment with Hodes and DEA, but th at t h i s fe e
ag ree ment was not fair or rea sonable. I n addition, the jury found that Gammon, as an attorney , had failed to comply with the fiduciar y duties owed to his clients. Wit h respe ct to Gammon’s claim for quantum meruit, the jury found that Gammon had perf ormed valuable service s for Hodes and
D E A , f o r w h ic h h e h a d n o t b e e n p a id , in th e a mo u n t o f $ 3 0 , 0 0 0

. F in a ll y , th e ju r y f o u n d th a t G a mm o n had ac cepte d sums of money for sa tisfaction in full for ser vices re ndere d prior to April 6, 2009. The t ri al court rende red judgme nt in favor of Hodes and DEA based on the jury ’s verdic t. I n addition, based on its deter mination that the brea ches of fiduciar y duty “committed by

2Gammon constitute clea r and serious brea ches of duty ,” the trial court conclude d that the forf eiture of fee s was war

rante d and that Gammon was not entitled to any equitable relief , including quantum meruit relief

. The trial court re ndere d judgme nt that Gammon take nothing on his suit and that he forf eit fee s in the sum of $27,379.19.

On appea l, Gammon raises eig ht issues challenging the trial court’s jurisdiction, the trial court’s exercise of its discretion in imposing a fee forf eiture, the sufficie ncy of the evidenc e, and the c harg e pre sented to the jury

.

ANALYSIS

Jurisdiction
As a preliminary matter, we consider Gammon’s asser tion that the trial court did not have jur isdiction to conduct the trial or re nder a judgme nt in this case . Gammon explains that the litigation was orig inally tried in Travis Cou n t y C o u rt at L aw Number One, and a judgme nt was rende red in his favor

. After the orig inal trial court g rante d Hodes and DEA’s motion for new trial, the case was tried to a second jury in Travis County Court a t L aw Number Two, and the trial court rende red the judgme nt that is the subject of this appea l. Gammon asserts that beca use t he mot ion for new trial was g rante d in County Court at L aw Number One, that court had exclusive jurisdiction to conduct the subseque nt trial. We disagr ee.

The jurisdiction of the County Court at L aw Number One and County Court at L aw Number Two are coextensive, and under the Travis County L ocal Rules, the courts m aint ain a
centr al docket for the consideration of preliminary and pretria l matters. Tex. Gov’t Code §§ 25.003,

32 5

. 2 2 9 2 ; T r a v is Cn ty

. Co u r t a t L a w ( T e x. ) L o c . R. 2

. 3 , 2

. 5

. G a mm o n h a s n o t c it e d , n o r h a v e w e f o u n d , any authority for the proposition that, as a matter of jurisdiction, the same trial court must c onduct all proce eding s relate d to a ca se once a motion for new trial is g rante d. Gammon’s jurisdi ctional 1 challeng e, his six th issue on appea l, is overruled.
Discretion in imposing fee forfeiture

I n two rela ted issues on appea l, Gammon, in eff ect, asser ts that the trial court abused its discretion in enter ing a judgme nt in favor of Hodes and DEA on their claim for fee forf eiture based on the jury ’s finding s. I n his first issue on appea l, Gammon points out that the jury found that Hodes suffe red no damag es and arg ues that, as a result, “the trial court should have rende red a taken o th in g ju d g me n t a g a in s t H o d e s a n d D E A o n th e f

id u c ia r y d u ty c la im s . ” I

n h is f o u r th is s u e o n a

p p e a l,
Gammon arg ues that fee forf eiture is inappropria te in this case beca use it would result in a windfall to Hodes and D EA and be cause Hodes a nd DEA ne ver pr operly

pleade d for f

ee f orfe iture.
“Our leg al sy stem has l o n g re co gnized the vital role of the fiduciar y duties that

a tt o r n e y s o w e th e ir c li e n ts

. ” J

o e v
. Tw o Th ir ty Ni n e J

o in t V e n tu r e , 1 4 5 S. W. 3 d 1 5 0 , 1 5 4 ( T e x. 2 0 0 4 )

. “A lawy er must conduct his or her business with invetera te honesty and loy alty , alway s keeping his

I n s u p p o rt of his arg

ument, Gammon cites In re Baylor Medic al Center at Garland , 1 280 S.W .3d 227 (Tex. 2008)

. I n that case , the Texas Supreme Court considere d when a trial court could “u n gra n t ” a motion for new trial. Id

. at 229. Although prior case s had held that an order g ranting a motion for new trial could only be “ung rante d” within 75 day s of its signing , the supreme court explained that “[w]hen a new trial is g rante d, the case stands on the trial court’s docket the same as though no trial had b ee n gra n ted” and, as a result, a trial court could rec onsider it s ruling g ranting a motion for new trial at any time. Id

. at 229, 231. The supreme court did not consider whether a case could be transfe rre d to a differ ent trial court upon g ranting a motion for new trial, the issue befor e this Court. Acc ording ly , we do not consider In re Baylor Medic al Center instructive on this iss ue. 4client’s best interest in mind.” Hoove r Slovace k LLP v. W alton , 206 S.W .3d 557, 561 (Tex. 2006) (citing Lopez v. Munoz, Hock ema & Ree d, L.L.P. , 22 S.W .3d 857, 867 (Tex. 2000)). As a fiduciar y ,

a lawy er has an aff

irmative duty to make a full and acc urate confe ssion of all his fiduciar y activities,
transac tions, profits, and mistakes. Jack son Law Office, P.C. v

. Chappell , 37 S.W .3d 15, 22 (Tex. App.—Ty ler 2000, pe t. denied).

When a client proves a brea ch of fiduciar y duty by the attorney , the attorney may be require d to forf

eit some or all of his fee s. Akin, Gump, Strauss, Hauer & Feld, L .L.P. v. N ational
Dev . & Researc h Corp. , 299 S.W .3d 106, 121 (Tex. 2009); Burrow v. Arce , 997 S.W .2d 229, 237 (Tex. 1999) (“[A] person who ren d er s s er v i ce to another in a rela tionship of trust may be denied

c o mp e n s a ti o n f o r h is s e r v ic e if h e b r e a c h e s th a

t tr u s t. ” )

. O n c e a

ny n e c e s s a

r y f a c tu a l d is p u te s r e le v a

n t
to the issue have been re s o l v ed by the trier of fac t, the trial court must deter mine whether the attorney ’s conduct was a clea r and serious brea ch of duty to his client, whether any of the attorney ’s
compensa tion should be forf eited, and if so, the amount of forf eiture. Miller v. Kennedy & Minshew,
P.C. , 142 S.W .3d 325, 338 (Tex. App.—For t Worth 2003, pet. denied).
We revie w a tria l court’s fee- forf eiture determination under an abuse-of- discretion

s t an d ard. Burrow , 997 S.W .2d at 245. A trial court does not abuse its discretion unless it acts without ref

ere nce to any g uiding rules or principles or its decision is arbitra ry or un re asonable

. Downer v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241-42 (Tex. 1985). L eg al and factual sufficie ncy are rele vant fac t o rs t o b e considere d in assessing whether the trial court abused its discretion. Miller , 142 S.W .3d at 339. An abuse of discre tion does not occur w hen the tria l court bases its decision on conflicting evidenc e, as long as s o m e evidenc e rea sonably supports the trial court’s de cision. Id

. 5We first consider Gammon’s arg ument that the trial court abused its discretion in imposing a fee forf

eiture beca

use Hodes and DEA failed to plead for fee forf eiture. Cf

. Lee v. Lee , 47 S.W .3d 767, 780 (Tex. App.—Houston [14t h Dist.] 2001, pet. denied) (conc lu d i n g t h at party must plead fee forf

eiture to be entitled to remedy of for feiture ). The rec ord shows that Hodes a nd
DEA pleade d that Gammon had brea ched his fiduciar y duty and that “Ga mmon should be forc ed to disgor g e all attorney ’s fee s paid by [Hodes and DEA] in 2008-09.” We conclude that Hodes and
DEA’s pleading s wer e sufficie nt to bring their reque st for a fee forf eiture to the attention of the trial
court a nd the par ties. Next, we consider Gammon’s asser t i on that Hodes and DEA suffe red no damag es and that, as a result, t hey did not preva il on their breach- of-f iduciary claim. Ordina

rily , to preva il

on a brea ch-of

-fiducia ry claim, a plaintiff must prove (1) the exis tence of the fiduciar y rela tionship and (2) a bre ach of

that duty by the attorne y

defe ndant (3) tha t cause s (4) da mag es to the plaintiff.
B ec k v. L a w Offices of Edwin J. (Ted) Terry, Jr., P.C. , 284 S.W .3d 416, 429 (Tex. App.—Austi n 2009, no pet.). Howeve r, fee forf eiture is an equitable reme dy , the centr al purpose of which is not
to compensa te the client, but “to protec t rela tio n s h i p s o f trust from an ag ent’s disloy alty or other misconduct.” Burrow , 997 S.W .2d at 246; see also ERI Co n s u l t i n g E n g’rs, Inc. v. Swinnea , 318 S.W .3d 867, 873 (Tex. 2010). Acc ording ly , the Texas Supreme Court has held that a trial court may impose fee forf

eiture based on a claim of bre ach of fiduciar y duty reg ardle ss of whethe r the c lient proves that he sustained ac tual damag es as a result of the br eac h. Burrow , 997 S.W .2d at 240. Here, the jury found that Gammon had brea ched his fiduciar y duty to Hodes and DEA, and upon deter

mining that Gammon’s conduc t constituted “cle ar and serious brea ches of

6d

u ty , ” th e tr

ia l c o u r t im p o s e d th e e q

u it a b le r e me d y o f f e e f o r f e it u r e
. S e e id

. a t 2 4 6

. T h e ju

r y ’ s f in d in g of brea ch of fiduciar

y duty , assuming it was based o n s ufficie nt evidenc e at trial, supports the trial court’s decision to impose a fee forf eiture, including the court’s decision to forf eit Gammon’s

rec overy of fe es in quantum meruit, despite a lack of actua l damag es. See id . at 240. I n short, we reje ct Gammon’s arg ument that the trial court abused its discretion in imposing a fee forf eiture beca use “H odes did not preva il in the lawsuit.”

Finally , we disag ree with G ammon’s asser tion that the imposit ion of the reme dy of fee forf eiture is inappropriate in this case beca use it would result in a windfa ll to DEA and Hode s beca use, ac co rd i n g t o Gammon, they did not pay any attorney ’s fee s. As we will discuss further below, evidenc e was prese nted at trial showing that Gammon reta ined more than $80,000 in funds belong ing to Hodes and DEA based on his contention that the funds wer e due to him as pay ment for attorney ’s fe es. We overr ule Gammon’s f

irst and fourth issues on a ppeal.
Sufficiency of the e videnc e

Having conclude d that the jury ’s finding of brea ch of fiduciar y duty , if supported by the rec ord, is sufficie nt to support the imposit ion of fee forf eiture, we next examine whether the evidenc e is sufficie nt to support the judgme nt. I n his third issue on appea l, Gammon arg ues that the evidenc e is fac tually and leg ally insufficient to support the jury ’s finding s that the fee ag ree ment was

u n f a ir a n d u n r e a s o n a b le , i. e . u n c o n s c io n a

b le , o r th a t G a mm o n b r e a c h e d h is f

id u c ia r y d u ti e s to H o d e s . When r eviewing a challeng e to the leg al sufficie ncy of the evidenc e, we revie w the evidenc e in the l ight most favor able to the j udg ment, cre diting favora b l e ev i d ence i f a rea sonable fac tfinder could and disreg arding contra ry evidenc e unless a rea sonable fac tfinder could not.

7City of

Keller v. W

ilson , 168 S.W .3d 802, 807 (Tex. 2005). When an appellant challeng es the leg al sufficie ncy of the evidenc e supporting an adver se finding of fac t f or which the opposing pa rty had the burden of proof, the a ppellant must demonstrate that ther e is no evidenc e, or mere ly a scintilla of evidenc e, to support the adver se finding

. Id

. at 827. The evidenc e is leg ally sufficie nt if it would enable rea sonable and fair- minded jurors to rea ch the verdic t under revie w. Id

. By contra st, w hen

an appe l l an t att acks the leg al sufficie ncy of an adver se finding on an issue for which he has the burden on proof, he must demonstrate that the evidenc e establishes the issue as a m at t er of law.
Dow Chem. Co. v. Francis , 46 S

. W

. 3 d 2 3 7 , 242 (Tex. 2001) (per curia m). The fac tfinder is the sole judge of the witnesses’ cre dibilit y and the weig ht to be g iven their testimony

. See McG alliard v. Kuhlmann , 722 S.W .2d 694, 696 (Tex. 1986).

I n a fac tual-suffic iency revie w, we must exam ine the evidenc e that both supports and contra d i ct s t h e jury ’s verdic t in a neutra l light. See Dow Chem. Co. , 46 S.W .3d at 242. We consider and weig h all the evidenc e, and can set aside the verdic t only if the evidenc e is so weak or i f the finding is so ag ainst the g rea t weig ht and preponde ranc e of the evidenc e that the verdic t is clea rly wrong and manifestly unjust. Id .; C i t y o f A u stin v. Chandler , 428 S.W .3d 398, 407-08 (Tex. App.—Austin 2014, no pet.).

To preva il on their b re ac h -o f-f iduciary claim and obtain fee forf eiture, DEA and Hodes wer e require d to pr ove the exis tence of a fiduciar y rela tionship and a brea ch of that duty by
G a mm o n . S e e La w O ff ic e s o f E d wi n J

. ( Te d ) Te r r y , J r
. , 2 8 4 S. W. 3 d a

t 4 2 9

. T h e f

id u c ia r y r e la ti o n s h ip betwee n an attorney and his client exis ts as a matter of law. Goffney v. Rabson , 56 S.W .3d 186, 193 (Tex. A pp.—Houston [14t h Dist.] 2001, pet. denied) . Among other things, a brea ch-of -fiducia ry 8duty claim ag ainst an attorney arises from an attorney ’s failing to disclose conflicts, placing persona l

interests over the client’s interests, taking advanta g e of the client’s trust, failing to deliver fu n d s belong ing to the client, and eng ag ing in self-de aling

. Id

. “The ‘fa il-safe ’ mecha nism of the fiduciar

y rela tionship i s the duty

of full disclosure.” Jack son Law Off

ice , 37 S.W .3d at 22.
Be cause a lawy er’ s fiduciar y duty to a client cover s contra ct neg otiations betwee n th e m, s u c h c o n tr a c ts a

r e c lo s e ly s c r

u ti n iz e d

. A n g lo

-

D u tc h P e tr

o l. I n t’ l, I n c
. v
. G r e e n b e r

g P e d e n , P

. C. , 3 5 2 S. W. 3 d 4 4 5 , 4 5 0 ( T e x. 2 0 1 1 ) ; Ke c k , M a h in & Ca te v
. Na ti o n a l U n io n F ir e I n s
. Co

. o f P it ts b u r g h , 20 S.W .3d 692, 699 (Tex. 2000) (“Contra cts betwee n attorney s and their clients neg otiated during the exis tence of the attorney -client rela tionship are closely scrutinized.”). When an attorney enter s int o a co ntrac t with his or her client for compensa tion during an alre ady exis ting attorney -client rela tionship, “ther e is a presumption of unfairne ss or invalidity at t ac h i n g to the contra ct, and the burden of showing its fairne ss and rea sonablene ss is on the attorney .” Archer v. Griffit h , 390 S.W .2d 735, 739 (Tex. 1964)

. Fur ther, when self-de aling by the fiduciar y is a lleg ed, as it wa s in this case ,

a presumption of unfairne ss automatically arises, and the burden is place d on the fiduciar y to prove that the questioned tra

nsaction (1) was made in g ood faith, (2) for fair consideration, and (3) after full disclosure of all materia l information to t h e p ri n cipal. Jack son Law Office , 37 S.W .3d at 22 (citing Stephens Cnty. Museum, Inc. v. Sw enson , 517 S.W .2d 257, 261 (Tex. 1974)); see Houston

v. L u d w i ck , No. 14-09-00600- CV, 2010 WL 4132215, at *7 (Tex. App.—Houston [14t h Dist.] Oct. 21, 2010, pet. de nied) (me m. op.).

At trial, Gammon pre sented e x tensive evide nce of the hi story of hi s repr esenta tion of Hodes and DEA for many y ear s prior to the prese nt fee dispute. The jury hear d evidenc e establishing tha t Gammon obtained many key leg al victories for Hodes and DEA, some for w hich
9the jury could have inferr ed that Hodes and DEA wer e less than appropr iately appre ciative, based on

Hodes’s testimony

. Gammon also prese nted evidenc e that Hodes and DEA wer e often not c urre nt in pay ing Gammon for the leg al work he perf ormed and that Gammon and Hodes had a very informal attorney -client rela tionship when i t ca m e to the pay ment of leg al fee s and the service s Gammon rende red to Hodes and DEA. I t was this lack of formality and attention to detail in billings and in his eng ag ement wher e fee s wer e conce rned, howeve r, that ultimately proved to be Gammon’s undoing a t trial.

For example, the jury was prese nted with evidenc e that Gammon, on two separ ate

occa sions and without permission, had endorse d chec ks (totaling approximately $160,000) that

wer e intended for Hod es . Ga m m on then deposited the funds in his trust acc ount and remitted half the funds to Hodes and reta ined the ot h er h al f fo r himself, alleg edly for the pay ment of fee s. The jury also hear d evidenc e, including Gammon’s own testimony , that Gammon had failed to keep contempora

neous rec ords of his leg al service s an d h ad never provided any billing statements to DEA or Hodes to fully acc ount for the amounts reta ined and the amounts distributed to his c lients.

Gammon, on the other hand, testified that he had permission from Hodes to deposit the checks and that he retained half the depo sited funds because he and DEA wer e then opera ting under an oral conting ency -fe e ag ree ment. This ag ree ment, howeve r, was never reduc ed to writing

. See Tex. Gov’t C ode § 82.065(a) (“A conting ent fe e contr act f or leg al servic es must be in writing and sig ned by

the attorne y

and client.” ). I n addition, the evidenc e bef ore the jury included a letter from Ga mmon to Hodes’s acc ountant, dated April 6, 2009, in which Gammon states that whe n he deposited Hodes’s second chec k in his trust acc ount, it “applied to exti ng uish the rema ining balanc e

10owed to this office by [DEA] for leg al fee s incurre d in the prosec ution of its numerous cause s of

action ag ainst Denise Hodes.” I n other words, acc ording to Gammon’s own April 6 letter, Gammon kept half the funds from deposited chec ks in pay ment for service s previously rende red, not to satisfy

an ora l continge ncy -fe e ag ree ment.

F u r th e r , th e ju

r y h e a r d H o d e s ’ s te s ti mo n

y c o n c e r n in g th e e xe c u

ti o n o f th e M a

y 4 , 2 0 0 9 fee ag ree ment. Hodes explained that Gammon had shown up at his house the night befor e the fore closure auction, set for May 5. After the men had a couple of beer s, Gammon prese nted Hodes with the fee ag ree ment, calling for 50% of any future rec overy . Acc ording to Hodes, Gammon did
not discuss the leg al eff

ect of the ag ree ment and, althoug h disputed by Gammon, told Hodes that he neede d to sign the f

ee a rra ng ement in orde r to participa te in the auc tion the next day

. Finally , Hodes and DEA’s expert witness, Wil l i am Allensworth, testified that the conting ency -fe e agr eeme nt, enter ed int o the ni g ht befor e the auct i o n , wa s problematic for several

re as o n s , n o t the l east of which was that the agr eeme nt g uara nteed Gammon a recove ry of 50% o f the $103,000 constructive trust that his clients had on the proper ty , even if another party purcha sed the ho m e at au ct i o n , with littl e or no additional work require d by Gammon. The jury was also
prese nted with evidenc e conce rning the amount of work that Gammon perf ormed afte r April 6 , 2 0 0 9 , in c onnection with the fore closure a nd with evidence that the home—which Gammon now claims a 50% inter est in—was value d at more tha n $400,000.
Ba sed on this evidenc e, the jury could have rea so n a b ly c o n c lu d e d th a

t G a mm o n failed
to make full disclosure, made misrepre sentations, and eng ag ed in se lf-dea ling. Simi larly , beca use there was evidenc e that sever al of the brea ches occur red in the formation of the fee ag ree ment, the

11jury could have rea sonably co n cl u d ed t hat the fee ag ree ment was unfair and unrea sonable, and

Gammon has failed to establish the ag ree ment was fair and rea sonable as a matter of law. Fur ther,

we cannot conclude from the evidenc e bef o re u s that the verdic t is clea rly wrong and unjust. Consequently , the evidenc e is leg ally and fac tually suffic i en t to support the jury ’s deter mination that Gammon brea ched his fiduciar y duty and to support the trial court’s dete rm i n at i o n that
Gammon’s conduct constituted “cle ar and serious brea ches of duty .” We overr ule Gammon’s third 2 issue on appea l.
Findings of fact and conclusions of law

Next we consider Gammon’s co m p l aint that the trial court committed reve rsible

err or by failing to issue findings of fac t and conc lusions of law as ti mely reque sted. I n his second issue on appea l, G ammon arg ues that he timely filed a reque st f or finding s of fac t and conclusions of law pursuant to Rule 296 of the Texas Rules of Civil Procedur e and that, despite his subsequent notice of past-due finding s, the trial court failed to file any finding s of fac t and conclusions of law.
Acc ording to Gammon, he has suffe red harm on appea l as a result of the trial court’s ref usal to issue finding s of fac t and conclusions of law beca use “he has been forc ed to attack all the possible g rounds supporting the judgme nt instead of the g rounds ac tually found by the cour t.”

Ho des and DEA asser

t that Gammon has waived any arg ument that the finding s and 2 judgme nt are ag ainst the g rea t weig ht and p re p ondera nce of the evidenc e beca use Gammon has not provided any citations to the rec ord, as require d by Rule 38.1 of t he Tex as R ules of Appellate Procedur e. See Tex. R. App. P. 38.1 (brief ing require ments). Whil e we ag ree that Gammon’s failure to c ite to the rec ord with respe ct to the streng th of the evidenc e might support a deter mination that these issues have been waived, see City of Arlington v. State Farm Lloyds , 145 S.W

. 3 d 165, 167 ( T e x. 2 0 0 4 ) , w e h a

v e in s te a d a s s u

me d w it h o u t d e c id in g th a

t G a mm o n ’ s a r g u me n ts a r e p r o p e r ly b e f

o r e us and have independe ntly deter mined whether the fac ts stated in Gammon’s brief are supported by the re cord, to the e x tent we c an, and c oncluded that Ga mmon’s sufficienc y

challeng es fa il. 12I n any case tried in the district or county court without a jury , any party may reque st

the court to state in writing its finding s of fac t and conclusions of law. Tex. R. Civ. P. 296. When

a proper reque st is made under Rule 296, the trial court i s o bliga ted to make finding s of fac t and conclusions of law. See id

. R. 297. I n this case , Gammon acknowledg es t hat, gene rally , finding s

o f fa ct and conclusions of law are not require d following a jury trial, even when reque st ed

. Neve rtheless, Gammon arg ues that he was entitled to finding s of fac t and conclusions of law on the court-de cided issue of fee forf eiture, including the court’s deter mination th at “the brea ches of fiduciar y duty committed by Gammon constitute clea r and serious brea ches of duty .” We conclude that while t he trial court c ould have pr ovided finding s of fa ct and c onclusions of law re lated to its decision to impose a fe e for feiture , it was under no oblig ation to do so.

A par ty is not entitl ed to finding s of fa ct and c onclusions of law in ever y case . For instance, findings of fac t and conclusions of l aw are not appropriate when a judgment i s rende red

as a matter of law beca

use they serve no purpose and should not be reque sted, made, or considere d

on appea l. IKB Indus. (

Nigeria) , Ltd. v. Pro-Line Corp. , 938 S.W .2d 440, 443 (Tex. 1997). I n other situations, finding s and conclusions are prope r an d m ay be helpful on appea l, but a party is not entitled to them beca

use (1) they are often u n n ec es s ary , (2) requiring them in ever y case would unduly burden the trial court, and (3) appellate courts are not oblige d t o gi v e t h em the s ame level of defe renc e. Id

. This is the case when, as here , the ap p l i cable standard of revie w is an abuse of discretion. See Chrysler Corp. v. Blackm on , 841 S.W .2d 844, 852 (Tex. 1992) (conc luding that althoug h tri al co urt is require d to make specific finding s when imposing death- penalty sanctions, finding s of fac t and conclusions of law under Rule 296 are not requir ed ); see also Davis v.

13Spring Branch Med. Ctr. , 171 S.W .3d 400, 4 1 3 (T ex. App.—Houston [14t h Dist.] 2005, no pet.)

( c o n c lu d in g tr ia l c o u

r t d id n o t e r

r in d e n y in g r e q u e s t f o r f in d in g s o f f

a c t a n d c o n c lu s io n s o f la

w u n d e r Rule 296 beca

use standard of revie w was abuse of discretion); Samuelson v. United Healthcare of Tex., Inc. , 79 S.W .3d 706, 710 (Tex. App.—Ft. W o rt h 2002, no pet.) (noting that when abuse-of

discretion revie w applied to trial court’s ruling , finding s of fac t and conclusions of law are helpful, but not require d); Keev er v. Finlan , 988 S.W .2d 300, 306-07 (Tex. App.—Dallas 1999, pet. dism’d) ( s a me ) ; Cr o u c h v
. Te n n e c o , I

n c
. , 8 5 3 S. W. 2 d 6 4 3 , 6 4 9 ( T e x. A p p . — Wa c o 1 9 9 3 , w r it d e n ie d ) ( s a me )

. I n a fee forf

eiture case , once any rele vant, disputed fac ts are resolved by the jury , the trial court exercises its discr etion to de termine, as a matter of equity , whether fee forf eiture should be imposed. Burrow , 997 S.W .2d at 246. I n doing so, the t rial court must deter mine whether the brea ch of fiduciar

y duty found by the jury is “cle ar and serious,” and to what extent fee forf eiture is

war rante d under the circ umstances. Miller , 142 S.W .3d at 338. Fa ctors the trial court is to consider in making these leg al deter minations include “the adequa cy of other reme dies, the weig ht to be g iven all other rele vant issues, and, most importantly , whether forf eiture is nece ssary to satisfy the public’s interest in protec ting the integ rity of the attorney -client rela tionship.” Id

. at 338-39, 340 n.33 (noting that matters committed to court’s discr etion in fee -for feiture deter mination a

re leg al conc lusions). Given the discretion that is aff orded to the trial court in deciding whether the reme dy of fee forf eiture is war

rante d, we conclude that althoug h the trial court could have provided finding s of fac t and conclusions of law demonstrating how i t we i gh ed the evidenc e and the rele vant fac tors, it was not require d to do so under Rules 296 and 297. See id. at 340 n.33 (explaining that fac t finding s made by trial court in fee -for feiture deter mination wer e helpful but not binding)

. We

overr ule Gammon’s se cond issue on appe al.
14Jury c harge
I n his fifth issue, Gam m o n argue s that the trial court abused its discretion in

o v e r r u li n g h is o b

je c ti o n s to th e ju

r y c h a r g e . T h e d e c is io n o f w h e th e r to s u b mi t a p a r ti c u la r in s tr u c ti o n

or definition is to be revie wed for an abuse of discretion with the essential question being “whe ther the reque st was rea sonably nece ssary to enable the jury to render a p ro p er verdic t.” Shupe v. Lingafelter , 192 S.W .3d 577, 579 (Tex. 2006). Fur ther, the omission of an instruction is reve rsible

e r r o r o n ly if th e o mi s s io n p r o b a b ly c a u s e d th e r e n d it io n o f a

n im p r o p e r ju d g me n t. I

d

. ; s e e T e x. R. A

p p . P. 61.1(a)

. To deter

mine whether a jury char g e err or was rea sonably calc ulated to and did probably

cause the rendition of an improper judgme nt, we must consider the entire rec ord. Quantum Chem. Corp. v. Toennies , 47 S.W .3d 473, 480 (Tex. 2001).

Gammon complains that the trial co u rt abused its discretion in overr uling his objection to question number 3. This question asked the jury to deter mine whether the fee ag ree ment b e tw e e n G a

mm o n a n d H o d e s a

n d D E A w a s “ f

a ir a n d r e a s o n a

b le

. ” A t th e c h a

r g e c o n f e r e n c e , G a

mm o n objected to q u est ion 3 on the g rounds that it failed to include the rele vant fac tors for deter mining
“re asonable ness” found in Rule 1.04(b) of the Texas Disciplinary Rules of Professional Conduct. 3
The trial court overr

uled the objection , an d upon consideration of the issue, the jury found that the fe e ag ree ment was not fa ir and re asonable to Hodes and D EA.

Ru le 1

. 0 4 ( b ) s e ts o u t a n o n - e xh a u s ti v e li s t o f f

a c to r s th a t a r e to b e c o n s id e r e d in d e te r mi n in g 3 the rea sonablene ss o f a fee ag ree ment, including the time, labor and skill require d to proper ly perf orm the s ervic e; t h e n at u re an d leng th of t he professional relationship with the client; and the experience , reputa tion and ability of the lawy er perf orming the service s. See Tex. Disciplinary Rules Prof’l Conduct R. 1.04(b), re printed in Tex. Gov’t Code, tit. 2, subt it. G. app. A (2005)

. 15Simi larly , Gammon complains that the trial court abused its discretion in overr uling his obj ec t i o n t o q u es tion number 10. I n question 10, the jury was asked to deter mine whether
Gammon brea ched his fiduci ar y duty to Hodes and DEA. At the char g e confe renc e, Gammon objected to the tr ial court’s f ailure to submit a

n instruction r eg arding unconsciona bility under r ule 1.04(a) and the fac tors reg arding rea sonablene ss of a fee under rule 1.04(b). The trial court denied 4
th e o b je c ti o n . U

p o n c o n s id e r in g q

u e s ti o n n u mb e r 1 0 , th e ju

r y d e te r mi n e d th a t G a mm o n h a d b r e a c h e d his fiduciary

duty

. Be cause the fee agr ee m en t that Gammon soug ht to enfor ce was neg otiated during the exis tence of their attorney -client rela tionship, question 3 ask ed t he jury to deter mine whether the ag ree ment was fair and rea sonable, i.e. consciona ble. Archer , 390 S.W .2d at 735. Additionally , beca use Hodes alleg ed that Gammon eng ag ed in self-de aling in connec tion with the fee ag ree ment, Gammon wa s require d to prove that the fee agr eeme nt was fair, m ade in g ood faith, and afte r full disclosure. See Jack

son Law Office, 37 S.W .3d at 22. Not only did G ammon fail to se cure any of these findings, t he jury conclude d in question 10 that Gammon had bre ache d his fiduciar y duty to Hodes and DEA. See Shupe , 192 S.W .3d at 579 (g ene rally , err or in submissi on of instruction is harmless whe n finding s of jury in answer

to other issues ar e suff

icient to support judgme nt). Upon revie w of the entire rec ord, including the jury ’s finding that Gammon brea ched his fiduciar

y duty , we conclude that the jury could have rea sonably deter mined that the fee ag ree ment

On appe al, Gammon also c omplains about question 3 and question 10 of the jury char g e 4 in sever al other respe cts. Howeve r, the only issue broug ht to the attention of the trial court prior to the submissi on of the char g e to the jury was t h e fa i l u re of the court to include an instruction r e g a r d in g Ru le 1

. 0 4 o f th e T e xa s D is c ip li n a r y Ru le s o f Pr o f

e s s io n a l Co n d

u c t. S e e T e x. R. Ci v . P. 2 7 2 (par ties or their a ttorney s must object to charg e “be fore the cha rg e is rea d to the jury ”). 16was unfair beca use it was a result of self-de aling and a failure to disclose by Gammon. Conversely ,

we cannot conclude that the failure by the trial court to submit an instruction on the rea sonablene ss of the attorney ’s fee s claimed by Gammon probably resulted in an improper judgme nt. Even if the trial court err ed in failing to instruct the jury on the “re asonable ness” of the claimed attorney ’s fee s, the er ror wa s harmless. Finally , Gammon also arg ues that the trial cou rt er red in overr uling his objection to que stion 8. Question 8 asked the jury to deter mine whether Gammon acc epted sums previously paid in full satisfac tion for leg al service s rende red prior to April 6, 2009. At the char g e confe renc e, Gammon objected to the inclusion of this question and arg ued that the quest i o n o f ac co rd and satisfac tion should not be submitt ed to the jury beca use there was no evidenc e to support the defe nse. The jury answe red “ y es” in re sponse to question 8.
“Ac cord and satisfac tion” is a defe nse to a contra ct claim and arises when the parties
enter into and car

ry out a new contra ct, express or implied, that discharg es all obliga tions under an exis ting contra ct. The acc ord is the new ag ree ment wher eby one party ag ree s to g ive or perf orm and the other party ag ree s to acc ept something differ ent than what was orig inally ag ree d. City of Houston
v. Firs t Cit

y , 827 S.W .2d 462, 472 (Tex. App.—Houston [1st Dist.] 1992, writ denied)

. The trial court must submit requested que stions to t he jury if the pl eading s and any evidenc e support them.
See Tex. R. Civ. P. 278. Her e, Gammon arg ues that althoug h the parties rea ched a s u bsequent
ag ree ment reg arding past pay ments due, i.e. an acc ord, there was no evidenc e that the new
ag re em en t wa s satisfied and there fore , the issue should not have been submitt ed to the jury

. Assuming without dec iding that Ga mmon is correc t, we conc lude that any err or committed by

the trial court in submitting DEA a nd Hodes’s acc ord-a

nd-satisfac tion de fense to the jury is ha rmless.
17Her e, the jury did not find in favor of Ga mmon on his claim for brea ch of contra ct, having deter

mined that the ag ree ment to pa y Gammon 50% on any future rec overy was unfair and

unrea sonable. See City of Brownsville v. Alvarado , 897 S.W .2d 750, 752 (Tex. 1995). Thus, to the
extent DEA and Hodes’s acc ord-a nd-satisfac tion defe nse was submitt ed as a defe nse to Gammon’s brea ch of contra ct claim, the j ury ’s findi ng th at Ga m m on had acce pted an acc ord and satisfac tion had no eff ect on this claim. I n addition, to the extent the acc ord-a nd-satisfac tion defe nse was raised by DEA and Hodes in response to Gammon’s equitable claim for quantum meruit, we also conclude that the submissi on of the defe nse had no eff ect on this claim. The jury deter mined that Gammon’s

rea sonable fee for leg al services perf ormed after April 6, 2009, for which he had not been paid, totaled $30,000. C o n s equently , the jury ’s deter mination that the parties rea ched an acc ord and satisf a ction for service s rende red prior to April 6, 2009, had no eff ect on Gammon’s quantum-meruit claim for $30,000. I n addition, as alre ady discussed, the jury ’s finding that Gammon brea ched his f iduciary duty and the trial court’s decision to impose a fee forf eiture suppor

ts the judgme nt in favor of DEA and Hodes on Gammon’s equitable claim for quantum meruit. As a result, we cannot conclude that any err or in the trial court’s submissi on of t h i s i s s u e probably cause d the rendition of an imprope r judg ment.

Having conclude d that any err or in the char g e as alleg ed by Gammon was harmless,

we ove rrule a

ppellant’s fifth issue on a ppeal.
Motion for new trial

I n his eig hth and final i s s u e, Ga m mon asser ts in a single sentenc e that “[f]or the

rea sons stated above and set forth in G ammon’s Motion for New Trial, fa ilure to g rant the motion

18was err or.” To the extent the issues prese nted in his motion for new trial overla p with the issues he has specific ally raised in his brief, we have alre ady addre ssed these issues. To the extent Gammon is attempting to raise additional issues, we conclude that these unspecifie d issues have been waived as i nadequately briefe d. Tex. R. App. P

. 38.1(i) (appellant’s brief m ust co n t ai n clea r and concise
arg ument for contentions made, with appropr iate citations to authorities and to rec ord). We overr ule appellant’ s eig hth issue on appea l.

CONCLUSION

Having overr

uled all of Gammon’s issues on appea l, we aff irm the judgme nt of the trial court.

__________________________________________ Scott K. Field, Just ice
Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: Apr il 24, 2015

19